COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is entered into as of this 26th day of
May, 2005 (the "Agreement"), by and among Infinicom AB ("Infinicom" or the
"Seller"), 24Holdings, Inc. ("24Holdings" or the "Company"), Moyo Partners, LLC
("Moyo"), and R&R Biotech Partners LLC ("Rodman," Rodman and Moyo are
collectively referred to as the "Purchasers"), collectively referred to as the
"Parties".
WHEREAS, the Seller owns an aggregate of 74,711,681shares of Common Stock,
par value $.01 per share of the Company (the "Common Shares") and, at the
Closing, will own 344,595 shares of convertible Series A Preferred Stock, par
value $.001 per shares, of the Company, which will be issued for currently
outstanding debt as contemplated herein (the Common Shares and the Series A
Preferred Stock are collectively referred to as the "Shares"), which Shares will
represent 109,171,181 shares of Common Stock or approximately 83.6% of the
130,606,895 then issued and outstanding shares of Common Stock of the Company,
after giving effect to the conversion of the Series A Preferred Stock; and
WHEREAS, the Purchasers desire to purchase from the Seller, and the Seller
desires to sell to the Purchasers, all of the Shares upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the undertakings and commitments
contained herein and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties agree as follows:
ARTICLE 1
SALE OF THE SHARES
Section 1.1 Sale of the Shares. Subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell, transfer and assign to the
Purchasers and the Purchasers agree to purchase from the Seller the Shares, in
exchange for an aggregate purchase price (the "Purchase Price") consisting of
(i) $500,000 in cash and (ii) shares of common stock of the Company which shall
represent one percent (1%) of the issued and outstanding shares of common stock
of the Company on a fully diluted basis as of the completion of the Merger as
set forth in Section 3.20 (after giving effect to any shares of common stock
(including any shares issuable pursuant to any warrants, options or convertible
securities) being issued in conjunction with such Merger, including any
financing thereof) (the "Merger Shares").
Section 1.2 Allocation of Shares. The proportion of the Shares purchased
and the cash portion of the Purchase Price to be paid by each Purchaser shall be
as set forth on the signature page hereto.
Section 1.3 Purchase Price.
(a) The cash portion of the Purchase Price shall be paid to the Seller by
wire transfer
1
at the Closing (as defined below).
(b) The Merger Shares shall be issued to the Seller contemporaneously with
the closing of the Merger.
ARTICLE 2
CLOSING AND DELIVERY
Section 2.1 Closing Date. Upon the terms and subject to the conditions
set forth herein, the consummation of the purchase and sale of the Shares (the
"Closing") shall be held at such date (the "Closing Date") and time as
determined at the mutual discretion of the Seller and the Purchasers; provided,
however, that the Closing shall occur no later than 30 days after the conditions
precedent contained in Article 7 herein have been satisfied (which the Parties
hereto agree shall not be later than August 1, 2005 (unless extended as provided
for herein). The Closing shall take place at the offices of McLaughlin & Stern
LLP, or by the exchange of documents and instruments by mail, courier, telecopy
and wire transfer to the extent mutually acceptable to the parties hereto.
Section 2.2 Delivery at Closing. At the Closing
(a) The Seller shall deliver to the Purchasers stock certificates
representing the Common Shares and 344,595 shares of Series A Preferred Stock.
The certificates representing the Shares shall be duly endorsed for transfer to
the Purchasers, as applicable, and accompanied by, (i) if required by the
Company's transfer agent, an opinion of counsel reasonably acceptable to the
Company, the Purchasers and the Company's transfer agent and (ii) stock powers
with medallion signature guarantees or other instruments of transfer duly
executed to the Purchasers; and
(b) The Purchasers shall transfer the aggregate Purchase Price to the
Seller in the form of certified bank check or wire transfer.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
Seller and the Company jointly and severally represent and warrant to the
Purchaser that:
Section 3.1 Existence and Power. Upon payment of delinquent franchise
taxes and related fees and penalties, the Company will be a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. The Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of Sweden and has all
corporate powers and all governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now
2
conducted. The Company has heretofore delivered to the Purchasers true and
complete copies of the Articles of Incorporation, as amended, and Bylaws, each
as currently in effect.
Section 3.2 Authorization; No Agreements. The execution, delivery and
performance by the Seller of this Agreement, the performance of its obligations
hereunder, and the consummation of the transactions contemplated hereby are
within the Seller's powers. This Agreement has been duly and validly executed
and delivered by the Seller and is a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms. The execution,
delivery and performance by the Seller of this Agreement do not violate any
contractual restriction contained in any agreement that binds or affects or
purports to bind or affect the Seller. The Seller is not a party to any
agreement, written or oral, creating rights in respect of any of such Shares in
any third party or relating to the voting of the Shares. Seller is the lawful
owner of the Shares, free and clear of all security interests, liens,
encumbrances, equities and other charges. Seller further represents that it does
not beneficially own any options or warrants or other rights to purchase shares
of Common Stock, except through conversion of shares of Series A Preferred Stock
as set forth in the form of the Certificate of Designation annexed hereto as
Exhibit B and as further set forth in Section 5.3 hereto. Except for the Series
A Preferred Stock, at the Closing there will be no outstanding or authorized
options, warrants, rights, calls, commitments, conversion rights, rights of
exchange or other agreements of any character, contingent or otherwise,
providing for the purchase, issuance or sale of any of the Shares, or any
arrangements that require or permit any of the Shares to be voted by or at the
discretion of anyone other than the Seller, and there are no restrictions of any
kind on the transfer of any of the Shares other than (a) restrictions on
transfer imposed by the Securities Act of 1933, as amended (the "Securities
Act") and (b) restrictions on transfer imposed by applicable state securities or
"blue sky" laws.
Section 3.3 Capitalization.
(a) The authorized capital stock of the Company consists of 100,000,000
shares of common stock, with a $0.01 par value per share; there are 96,147,396
shares of common stock issued and outstanding as of the Closing Date; and there
are approximately 233 shareholders of record holding the common stock. There are
5,000,000 shares of preferred stock authorized, and upon Closing, there shall be
344,595 shares of Series A Preferred Stock, issued and outstanding, which shares
of Series A Preferred Stock shall be convertible into 34,459,500 shares of
Common Stock. All of the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassesasable. All of the issued and outstanding shares of capital stock of the
Company have been offered, issued and sold by the Company in compliance with all
applicable federal and state securities laws. No securities of the Company are
entitled to preemptive or similar rights, and no Person has any right of first
refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated hereby. Except as a result of the
purchase and sale of the Shares, there are no outstanding options, warrants,
script rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations, except for the Series A
Preferred Stock, convertible into or exchangeable for, or giving any Person any
right to subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company is or may
become bound to issue additional shares of
3
Common Stock, or securities or rights convertible or exchangeable into shares of
Common Stock. Except for the Series A Preferred Stock the issuance and sale of
the Shares will not obligate the Company to issue shares of Common Stock or
other securities to any Person (other than the Purchaser) and shall not result
in a right of any holder of Company securities to adjust the exercise,
conversion, exchange or reset price under such securities.
(b) There are no outstanding obligations, contingent or otherwise, of the
Company to redeem, purchase or otherwise acquire any capital stock or other
securities of the Company.
(c) There are no shareholder agreements, voting trusts or other agreements
or understandings to which Seller is a party or by which the Seller is bound
relating to the voting of any shares of the capital stock of the Company.
(d) The Shares shall be duly authorized for issuance, when delivered in
accordance with the terms of this Agreement, and shall be validly issued, fully
paid and nonassessable and the transfer of said Shares shall not be subject to
any preemptive or other similar right.
Section 3.4 Subsidiaries.
(a) The Company's only direct subsidiary is 24Store (Europe) Limited, a
corporation registered under the laws of the United Kingdom (the "Subsidiary").
(b) The Company owns all of the issued and outstanding shares of capital
stock of the Subsidiary, which shares have been duly authorized and are validly
issued, fully paid and nonassessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights or other contracts or commitments that could require the Company
or its Subsidiary to sell, transfer, or otherwise dispose of any capital stock
of its Subsidiary or that could require the Subsidiary to issue, sell, or
otherwise cause to become outstanding any of its own capital stock. There are no
outstanding stock appreciation, phantom stock, profit participation, or similar
rights with respect to the Subsidiary. There are no voting trusts, proxies, or
other agreements or understandings with respect to the voting of any capital
stock of the Subsidiary. The Company and its Subsidiary do not own or control,
directly or indirectly, any shares of capital stock of any other corporation or
any interest in any partnership, limited liability company, joint venture or
other non-corporate business enterprise.
Section 3.5 Financial Statements.
a) SEC Reports; Financial Statements. The Company has filed all reports
required to be filed by it under the Securities Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including pursuant to Section
13(a) or 15(d) of the Exchange Act, since 1999 as a public reporting company
(the foregoing materials being collectively referred to herein as "SEC
Reports"), including the annual report on Form 10-K for the fiscal year ended
December 31, 2004 and the quarterly report on Form 10-QSB for the period ended
March 31, 2005. The Company further represents that upon the completion of the
sale of all of the Subsidiary's capital stock to Seller as provided above in
Section 7.1(g), the Company shall file
4
an information statement on Schedule 14-A relating thereto. The Seller has
identified and made available to the Purchasers a copy of all SEC Reports filed
within the 10 days preceding the date of this Agreement. As of their respective
dates, the SEC Reports complied in all material respects with the requirements
of the Securities Act and the Exchange Act and the rules and regulations of the
Securities and Exchange Commission (the "Commission") promulgated thereunder,
none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
("GAAP"), except as may be otherwise specified in such financial statements or
the notes thereto, and fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(b) Except as set forth in its Form 10-K for the fiscal year ended
December 31, 2004, the Company has not been engaged in any other business
activity since January 1, 2004.
(c) Since the date of the filing of its annual report on Form 10-K for the
period ended December 31, 2004, except as specifically disclosed in the SEC
Reports: (i) there has been no event, occurrence or development that has had or
that could result in a Material Adverse Effect; (ii) the Company has not
incurred any liabilities (contingent or otherwise) or amended of any material
term of any outstanding security; (iii) the Company has not altered its method
of accounting or the identity of its auditors; (iv) the Company has not declared
or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock; (v) the Company has not issued any equity
securities to any officer, director or Affiliate of the Company; (vi) the
Company has not made any loan, advance or capital contributions to or investment
in any Person; (vii) the Company has not, except for the sale of the Subsidiary,
entered into any transaction or commitment made, or any contract or agreement
entered into, relating to its business or any of its assets (including the
acquisition or disposition of, or creation of a lien on, any assets) or any
relinquishment by the Company of any contract or other right; (viii) the Company
has not granted any severance or termination pay to any current or former
director, officer or employee thereof, or increased the benefits payable under
any existing severance or termination pay policies or employment agreements or
entered into any employment, deferred compensation or other similar agreement
(or any amendment to any such existing agreement) with any current or former
director, officer or employee of the Company; (ix) the Company has not
established, adopted or amended (except as required by applicable law) any
collective bargaining, bonus, profit sharing, thrift, pension, retirement,
deferred compensation, compensation, stock option, restricted stock or other
benefit plan or arrangement covering any current or former director, officer or
employee thereof; (x) the Company has not increased the compensation, bonus or
other benefits payable or otherwise made available to any current or former
director, officer or employee of the Company; (xi) the Company has not made any
tax
5
election or any settlement or compromise of any tax liability, in either
case that is material to or entered into any transaction by the Company not in
the ordinary course of business.
Section 3.6 No Liabilities or Debts. The Company is not a guarantor of any
indebtedness of any other person, firm or corporation, and, except as disclosed
on the Financial Statements, there are no liabilities or debts of the Company of
any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or set
of circumstances which could reasonably be expected to result in such a
liability or debt, provided that (i) the Company shall have no further
liabilities or obligations to the Seller, which are estimated at approximately
$230,000, following the purchase of the Company's wholly owned Subsidiary by the
Seller as provided above in Section 7.1(g); and which liabilities in the amount
of approximately $230,000 shall be converted, as of Closing, into the shares of
Series A Preferred Stock, as further provided in Section 5.3.
Section 3.7 Litigation. There is no action, suit, investigation, audit or
proceeding pending against, or to the best knowledge of the Company threatened
against or affecting, the Company or any of its assets or properties before any
court or arbitrator or any governmental body, agency or official. The Company is
not subject to any outstanding judgment, order or decree. Neither the Company,
nor any officer, key employee or 5% stockholder of the Company in his, her or
its capacity as such, is in default with respect to any order, writ, injunction,
decree, ruling or decision of any court, commission, board or any other
government agency. The Commission has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company
under the Exchange Act or the Securities Act.
Section 3.8 Taxes. Upon the filing of all delinquent Delaware franchise tax
returns and the payment of amounts due thereunder, including any penalties and
interest and the filing of the federal tax return for the fiscal year ended
December 31, 2004, (a) the Company will have (i) duly filed with the appropriate
taxing authorities all tax returns required to be filed by or with respect to
its business, or are properly on extension and all such duly filed tax returns
are true, correct and complete in all material respects and (ii) paid in full or
made adequate provisions for on its balance sheet (in accordance with GAAP) all
Taxes shown to be due on such tax returns. There are no liens for taxes upon the
assets of the Company, except for statutory liens for current taxes not yet due
and payable or which may thereafter be paid without penalty or are being
contested in good faith. The Company has not received any notice of audit, is
not undergoing any audit of its tax returns, or has received any notice of
deficiency or assessment from any taxing authority with respect to liability for
taxes which has not been fully paid or finally settled. There have been no
waivers of statutes of limitations by the Company with respect to any tax
returns. The Company has not filed a request with the Internal Revenue Service
for changes in accounting methods within the last three years which change would
affect the accounting for tax purposes, directly or indirectly, of its business.
The Company has not executed an extension or waiver of any statute of
limitations on the assessment or collection of any taxes due (excluding such
statutes that relate to years currently under examination by the Internal
Revenue Service or other applicable taxing authorities) that is currently in
effect.
Section 3.9 Internal Accounting Controls; Sarbanes-Oxley Act of 2002. To
the best of its knowledge, the Company is in compliance with the requirements of
the Sarbanes-Oxley Act
6
of 2002 applicable to it as of the date of this Agreement. The Company has
established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and designed such disclosures controls
and procedures to ensure that material information relating to the Company, is
made known to the certifying officers by others within those entities,
particularly during the period in which the Company's Form 10-K or 10-Q, as the
case may be, is being prepared. The Company's certifying officers have evaluated
the effectiveness of the Company's controls and procedures as of the date of its
most recently filed periodic report (such date, the "Evaluation Date"). The
Company presented in its most recently filed periodic report the conclusions of
the certifying officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the Evaluation Date. Since the
Evaluation Date, there have been no significant changes in the Company's
internal controls (as such term is defined in Item 307(b) of Regulation S-K
under the Exchange Act) or, to the Company's knowledge, in other factors that
could significantly affect the Company's internal controls. The Company's
auditors, at all relevant times, have been duly registered in good standing with
the Public Company Accounting Oversight Board.
Section 3.10 No Brokers. No brokerage or finder's fees or commissions are
or will be payable by the Company or Seller to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement except for
Fredericks Michael & Co., and the Company has not taken any action that would
cause any Purchasers to be liable for any such fees or commissions. The Company
and Seller agree that the Purchasers shall have no obligation with respect to
any fees or with respect to any claims made by or on behalf of any Person for
fees of the type contemplated by this Section and Seller shall indemnify and
hold Purchasers and the Company harmless from any fees, costs or liabilities of
any kind incurred by Purchasers in connection therewith.
Section 3.11 Disclosure. The Company and Seller confirms that neither it
nor any other Person acting on its behalf has provided any of the Purchasers or
its agents or counsel with any information that constitutes or might constitute
material, nonpublic information concerning the Company. The Company and Seller
understand and confirm that the Purchasers will rely on the foregoing
representations in effecting transactions in securities of the Company. All
disclosure provided to the Purchasers regarding the Company, its business and
the transactions contemplated hereby furnished by or on behalf of the Company
with respect to the representations and warranties made herein are true and
correct with respect to such representations and warranties and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Company and Seller
acknowledge and agree that the Purchasers have not made, nor are the Purchasers
making, any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth herein.
Section 3.12 No Conflicts. The execution, delivery and performance of this
Agreement and the transactions contemplated hereby do not and will not: (i)
conflict with or violate any provision of the Company's Certificate or Articles
of Incorporation, Bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that
7
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of any agreement, credit facility,
debt or other instrument (evidencing a Company debt or otherwise) or other
understanding to which the Company is a party or by which any property or asset
of the Company is bound or affected or (iii) result in a violation of any law,
rule, regulation, order, judgment, injunction, decree or other restriction of
any court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or
asset of the Company is bound or affected.
Section 3.13 Filings, Consents and Approvals. Neither the Seller nor the
Company are required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance of this Agreement,
except for obtaining the approval of the shareholders of the Company to the sale
of the Subsidiary to the Company and the filing of an information statement with
the Securities and Exchange Commission pursuant to Schedule 14C of the
Securities Exchange Act of 1934.
Section 3.14 Compliance. The Company: (i) is not in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company
under), nor has the Company received notice of a claim that it is in default
under or that it is in violation of, any indenture, loan or credit agreement or
any other agreement or instrument to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been
waived), (ii) is not in violation of any order of any court, arbitrator or
governmental body and (iii) is not and has not been in violation of any statute,
rule or regulation of any governmental authority, except in connection with the
failure to file certain franchise tax returns in Delaware, and pay the amounts
due thereunder, and to file the federal income tax returns for the fiscal year
ended December 31, 2004.
Section 3.15 Transactions With Affiliates and Employees. Except as required
to be set forth in the SEC Reports, none of the officers or directors of the
Company and, to the knowledge of the Seller, none of the Affiliates or employees
of the Company is presently a party to any transaction with the Company (other
than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
Section 3.16 Assets. Except as set forth in the SEC Reports, the Company
has no assets, including, without limitation, goodwill, assets, real property,
tangible personal property, intangible personal property, rights and benefits
under contracts and cash, as to which there will be no distribution prior to the
Closing Date. All Company leases for real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not under any of such leases, any existing material default or event of
default (or event which with notice or lapse of time, or both, would constitute
a material default).
8
Section 3.17 Investment Company/Investment Advisor. The business of the
Company does not require it to be registered as an investment company or
investment advisor, as such terms are defined under the Investment Company Act
and the Investment Advisors Act of 1940.
Section 3.18 Environmental Matters. The Company has complied with all
applicable environmental laws and regulations . There is no pending or
threatened civil or criminal litigation, written notice of violation, formal
administrative proceeding or investigation, inquiry or information request by
any Governmental Entity relating to any Environmental Law involving the Company.
Section 3.19 Informed Decision. Seller is aware of the Company's business
affairs and financial condition and has reached an informed and knowledgeable
decision to sell the Shares.
Section 3.20 Consummation of a Merger Transaction. Seller acknowledges that
it is the intention of the Purchasers, upon completion of the transactions
contemplated hereby, to cause the Company to consummate a merger with one or
more as yet unidentified private unaffiliated operating companies (the "Merger")
subsequent to the Closing Date. Seller further acknowledges that upon
consummation of a Merger, it is possible that each Share will increase in value,
possibly substantially.
Section 3.21 Listing on the OTCBB. The Common Stock is approved for listing
and quoted on the Over-The-Counter Bulletin Board (the "OTCBB") and the Company
has and continues to satisfy all of the requirements of the OTCBB for such
listing and for the trading of its Common Stock thereunder. Seller and the
Company have not been informed, nor have knowledge, that the NASD or any other
regulatory agency will take action to cease the Company's Common Stock from
being quoted on the OTCBB.
ARTICLE 4
REPRESENTATIONS OF THE PURCHASERS
The Purchasers jointly and severally represent and warrant to the Seller,
as follows:
Section 4.1 Organization. Rodman is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and Moyo is a limited liability company duly, organized, validly
existing and in good standing under the laws of the State of New York, and each
has all requisite corporate power and authority to carry on its respective
businesses as now being conducted or to have such power and authority pursuant
to which Purchasers may not be reasonably expected to either (i) prevent or
materially delay the consummation of the purchase of the Stock, or (ii) have a
material adverse effect on the Purchasers. The Purchasers are in good standing
in each jurisdiction in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such good standing necessary.
Section 4.2 Execution and Delivery. The execution, delivery and performance
by the Purchasers execution and delivery of this Agreement is within Purchasers
power and does not (i)
9
violate any contractual restriction contained in any agreement which binds or
affects or purports to bind or affect the Purchasers; (ii) require any filing
with, or permit, authorization, consent of approval of, any Governmental entity,
except for the filings required to be filed with the SEC pursuant to the
execution of this Agreement.
Section 4.3 Ability to Carry Out the Agreement, Etc. Purchasers are willing
and able to pay the Purchase Price in the manner and within the schedule as
provided in this Agreement in exchange for the purchase of full ownership in the
Shares. Purchasers are not subject to or bound by any provision of any
certificate or articles of incorporation or Bylaws, or to the best of Purchasers
knowledge any mortgage, deed of trust, lease, note, bond, indenture, other
instrument or agreement, license, permit, trust, custodianship, other
restriction, or any applicable provision of any law, statute, rule, regulation,
judgment, order, writ, injunction or decree of any court, governmental body,
administrative agency or arbitrator which could prevent or be violated by or
under which there would be a default as a result of the delivery and performance
by the Purchasers under this Agreement, or under any agreements contemplated
hereunder.
Section 4.4 Binding Effect. This Agreement, when executed and delivered by
the Purchasers shall be irrevocable and will constitute the legal, valid and
binding obligations of the Purchasers enforceable against the Purchasers in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws of general application affecting
enforcement of creditors' rights generally or general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 4.6 Investment Experience. Purchasers each have such knowledge and
experience in financial, tax and business matters as to be capable of evaluating
the merits and risks of the purchase of the Shares, and of making an informed
investment decision with respect thereto.
Section 4.7 Opportunity to Inquire and Ask Questions. Purchasers confirm
that, in making its decision to purchase the Shares they have relied upon
independent investigations made by Purchasers or by its representatives,
including its own professional tax and other advisers and that Purchasers have
had a full and fair opportunity to examine all documents and to make inquiries
about the terms and conditions of this Agreement, to discuss the same and all
related matters with its own independent counsel and its own accountants and tax
advisers. Purchasers have been given the opportunity to ask questions of, and
receive answers from Seller concerning the terms and conditions of this
Agreement and to obtain such additional written information about the Company to
the extent Seller possesses such information or can acquire it without
unreasonable effort or expense. Notwithstanding the foregoing, Purchasers have
had the opportunity to conduct its own independent investigation and to obtain
any additional information or documents, to the extent the Company possesses
such information or can acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information provided by the Company.
Section 4.8 Merger Shares. The Merger Shares of the Company shall be duly
authorized for issuance when delivered in accordance with the terms of this
Agreement, and shall be validly issued, fully paid and nonassessable and the
issuance of said shares shall not be
10
subject to any preemptive or other similar right, and shall represent one
percent (1%) of the issued and outstanding shares of common stock of the Company
on a fully diluted basis as of the completion of the Merger (after giving effect
to any shares being issued in conjunction with such Merger, including any
financing consummated contemporaneously with the Merger).
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.1 Public Company Status. The Company shall make any and all
required filings under the Exchange Act so that it remains a reporting company
under the Exchange Act and its Common Stock continues to be a publicly traded
security. The Company shall, to the best of its ability, cause its Common Stock
to continue to be approved for listing on the OTCBB.
Section 5.2 Financial Condition as of the Closing Date. As of the Closing
Date, the Company shall not be a guarantor of any indebtedness of any other
person, firm or corporation, and, there shall be no liabilities or debts of the
Company of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be expected to result
in such a liability or debt.
Section 5.3 Conversion of Debt into Preferred Stock of the Company. On or
before the Closing Date, Seller shall purchase from the Company 344,595 shares
of Series A Preferred Stock in exchange for the cancellation of certain
indebtedness owed by the Company to the Seller in the amount of $230,000, which
shares shall carry such preferences, designations and restrictions as set forth
in the applicable Certificate of Designation annexed hereto as Exhibit B, which
will be filed with the State of Delaware Secretary of State on or before the
Closing
ARTICLE 6
COVENANTS OF THE PARTIES
The Parties hereto agree that:
Section 6.1 Public Announcements. The Seller, the Company and the
Purchasers shall consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law, will not
issue any such press release or make any such public statement prior to such
consultation and without the consent of the other Parties.
Section 6.2 Notices of Certain Events. In addition to any other notice
required to be given by the terms of this Agreement, each of the Parties shall
promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with any of the
transactions contemplated by this Agreement;
11
(b) any notice or other communication from any governmental or regulatory
agency or authority in connection with the transactions contemplated by this
Agreement; and
(c) any actions, suits, claims, investigations or proceedings commenced
or, to its knowledge threatened against, relating to or involving or otherwise
affecting such party that, if pending on the date of this Agreement, would have
been required to have been disclosed pursuant to Section 3 or Section 4 (as the
case may be) or that relate to the consummation of the transactions contemplated
by this Agreement.
Section 6.3 Access to Information. Following the date of this Agreement,
until consummation of all transactions contemplated hereby, the Seller and the
Company shall give to the Purchasers, their counsel, financial advisers,
auditors and other authorized representatives reasonable access to the Company's
offices, properties, books and records, financial and other data and information
as the Purchasers and their respective representatives may reasonably request
for the purpose of performing in-depth due diligence. In this regard, Purchasers
shall cooperate with Seller and the Company so as to minimize the impact and
disturbance of such inquiries and any sort of due diligence on the business of
the Company. Any sort of information which is disclosed pursuant to this
provision shall be kept by Purchasers and/or any of its representatives in
strict confidence and shall not be disclosed to except to persons participating
in this transaction on their behalf, including attorneys, accountants and other
advisors, except that nothing herein shall prevent disclosure or use of any
information as may be required by applicable law.
Section 6.4 Company's Business. The Company will not, without the prior
written consent of Purchasers, (i) make any material change in the type or
nature of its business, or in the nature of its operations, (ii) create or
suffer to exist any debt, other than that currently shown in the SEC Reports,
(iii) issue any capital stock or (iv) enter into any new agreements of any kind
(other than those contemplated by this Agreement) or undertake any new
obligations or liabilities.
Section 6.5 Reasonable Efforts. Each of the Parties will use its reasonable
best efforts to take all action and to do all things necessary in order to
consummate and make effective the transactions contemplated by this Agreement.
Section 6.6 Consents of Third Parties. Each of the Parties will give any
notices (and will cause its subsidiary to give any notices) to third parties,
and will use its reasonable best efforts to obtain (and will cause its
subsidiary to use its reasonable best efforts to obtain) any third party
consents, that the other Parties reasonably may request in connection with this
Agreement. Each of the Parties will give any notices to, make any filings with,
and use its reasonable best efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection with the
matters in this Agreement.
12
ARTICLE 7
COVENANTS OF THE PURCHASER
Section 7.1 Merger. After the Closing Date, Purchasers shall use their best
efforts to identify and consummate a Merger, and at a closing thereof, issue to
the Seller the Merger Shares.
ARTICLE 8
CONDITIONS PRECEDENT
Section 8.1 Conditions of Obligations of the Purchasers. The obligations of
the Purchasers are subject to the satisfaction of the following conditions, any
or all of which may be waived in whole or in part by Purchasers:
(a) Representations and Warranties. Each of the representations and
warranties of the Seller and the Company set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement
(except to the extent such representations and warranties speak as of an earlier
date or to the extent that such representations and warranties apply only to the
Subsidiary) as of the Closing Date as though made on and as of the Closing Date.
(b) Compliance Certificate. The President of the Company shall deliver to
the Purchasers at the Closing a certificate certifying: (i) that there has been
no material adverse change in the business, affairs, prospects, operations,
properties, assets or conditions of the company since the date of this
Agreement, except as contemplated by this Agreement; (ii) that attached thereto
is a true and complete copy of the Company's Articles of Incorporation, as
amended, as in effect at the Closing; (iii) that attached thereto is a true and
complete copy of its Bylaws as in effect at the Closing; and (iv) each of the
representations and warranties of the Seller and the Company set forth in this
Agreement are true and correct in all material respects as of the Closing Date
as though made on and as of the Closing Date.
(c) Good Standing Certificates. The Company shall have furnished the
Purchasers with good standing and existence certificates for the Company from
its jurisdiction of formation and such other jurisdictions as the Purchasers
reasonably request.
(d) Certified List of Record Holders. The Purchasers shall have received a
current certified list from the Company's transfer agent of the holders of
record of the Company's Common Stock.
(e) Board of Directors Resolutions. The Purchasers shall have received
executed resolutions of the Board of Directors of the Company approving the
transactions contemplated herein including the resignation of all current
directors of the Company, if so requested.
(f) Performance. The Seller and the Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
13
(g) Purchase of Subsidiary. On the Closing Date, Seller shall purchase
from the Company of all of the issued and outstanding capital stock of the
Subsidiary in exchange for an amount of $100,000 in cash to be paid by the
Seller to the Company, in addition to the purchase of intellectual property
owned by the Company in exchange for cancellation of certain of the Company's
liabilities to Infinicom, both accrued and contingent, $100,000 of which
purchase price, as provided above, shall be transferred to the Company
contemporaneously with its purchase by the Purchasers.
(h) Purchase of Series A Preferred Stock On or before the Closing Date,
Seller shall purchase from the Company 344,595 shares of Series A Preferred
Stock in exchange for the cancellation of certain indebtedness owed by the
Company to the Seller in the amount of $230,000.
(i) Filing of Tax Returns, Payment of Taxes and Good Standing. The Company
will have filed all required tax returns, including the franchise tax returns
due to Delaware and the federal income tax return for the fiscal year ended
December 31, 2004, paid all taxes, penalties and interest, if any, due
thereunder and become in good standing in Delaware.
(j) Legal Opinion. The Company shall deliver an opinion of counsel that the
Shares, upon delivery to the Purchaser, will be duly authorized, validly issued,
fully-paid and non-assessable.
Section 8.2 Conditions of Obligations of the Seller. The obligations of the
Seller to effect the sale of the Shares are subject to the following conditions,
any or all of which may be waived in whole or in part by the Seller:
(a) Representations and Warranties. Each of the representations and
warranties of the Purchasers set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and (except to
the extent such representations and warranties speak as of an earlier date) as
of the Closing Date as though made on and as of the Closing Date.
(b) Compliance Certificate. The authorized officer of the Purchasers shall
deliver to the Seller at the Closing a certificate certifying each of the
representations and warranties of the Purchasers set forth in this Agreement are
true and correct in all material respects as of the Closing Date as though made
on and as of the Closing Date.
(c) Performance. The Purchasers shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it or him on or before the Closing.
(d) No Legal Obstacle. There shall not be any judgment, order, decree,
stipulation, injunction, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement.
14
ARTICLE 9
TERMINATION
Section 9.1 Termination. This Agreement may be terminated and the purchase
and sale of the Shares may be abandoned at any time prior to the Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Seller or the Purchasers if the Closing shall not have
occurred on or before August 1, 2005 (unless the failure to consummate the
transactions by such date shall be due to the action or failure to act of the
party seeking to terminate this Agreement or regulatory delays);
(c) by the Purchasers if (i) Seller shall have failed to comply in any
material respect with any of the covenants, conditions, terms or agreements
contained in this Agreement to be complied with or performed by Seller; or (ii)
any representations and warranties of Seller or the Company contained in this
Agreement shall not have been true when made or on and as of the Closing Date as
if made on and as of Closing Date (except to the extent it relates to a
particular date); or (iii) Purchaser is not satisfied with its due diligence
review of the Seller and the Company; or
(d) by Seller if (i) the Purchasers shall have failed to comply in any
material respect with any of the covenants, conditions, terms or agreements
contained in this Agreement to be complied with or performed by it; or (ii) any
representations and warranties of the Purchasers contained in this Agreement
shall not have been true when made or on and as of the Closing Date.
Section 9.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to this Article 9, all further obligations of the Parties
under this Agreement shall forthwith be terminated without any further liability
of any party to the other parties; provided, however, that nothing contained in
this Section 9.2 shall relieve any party from liability for any breach of this
Agreement.
Section 9.3 Indemnification
(a) The Seller shall indemnify and hold the Purchasers harmless, and shall
reimburse Purchasers for, any loss, liability, claim, damage, expense
(including, but not limited to, reasonable cost of investigation and defense and
reasonable attorneys' fees) or diminution of value (collectively, "Damages")
arising from or in connection with (a) any inaccuracy in any of the
representations and warranties of Sellers pursuant to this Agreement or in any
certificate delivered by the Sellers pursuant to this Agreement, or any actions,
omissions or states of facts inconsistent with any such representation or
warranty, or (b) any failure by the Seller to perform or comply with any
provision of this Agreement. Notwithstanding any other provision stating or
implying otherwise and notwithstanding the generality of the above, the amount
of Damages which the Seller may be obligated to pay or reimburse the Purchaser
pursuant to the breach or non-performance of the provisions of this Agreement by
the Seller or of any of the transactions
15
contemplated hereby, shall be capped at an amount of $400,000, regardless of the
severity of the egregious nature of the breach or non-performance. This maximum
amount of indemnified Damages is calculated as the Purchase Price minus an
amount of $100,000 that shall be paid by Seller to the Company on the Closing
Date in exchange for all of the capital stock in the Subsidiary.
(b) Purchasers shall indemnify and hold the Seller harmless, and shall
reimburse Seller for any Damages arising from (a) any inaccuracy in any of the
representations and warranties of Purchasers in this Agreement or in any
certificate delivered by the Purchasers pursuant to this Agreement, or any
actions, omissions or states of facts inconsistent with any such representation
or warranty, or (b) any failure by the Purchaser to perform or comply with any
provision of this Agreement.
Section 9.4 Procedure for Indemnification. Promptly after receipt by an
indemnified party of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such section, give notice to the indemnifying party of the
commencement thereof, but the failure so to notify the indemnifying party shall
not relieve it of any liability that it may have to any indemnified party except
to the extent the defense of such action by the indemnifying party is prejudiced
thereby. In case any such action shall be brought against an indemnified party
and it shall give notice to the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, to assume the defense thereof with counsel reasonable
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such section for any fees of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation, If an
indemnifying party assume the defense of such an action, (a) no compromise or
settlement thereof may be effected by the indemnifying party without the
indemnified party's consent (which shall not be unreasonable withheld) unless
(i) there is no finding or admission of any violation of law or any violation of
the rights of any person which is not fully remedied by the payment referred to
in clause (ii) and no adverse effect on any other claims that may be made
against the indemnified party and (ii) the sole relief provided is monetary
damages that are paid in full by the indemnifying party, (b) the indemnifying
party shall have no liability with respect to any compromise or settlement
thereof effected without its consent (which shall not be reasonably withheld)
and (c) the indemnified party will reasonable cooperate with the indemnifying
party in the defense of such action. If notice is given to an indemnifying party
of the commencement of any action and it does not, within 15 days after the
indemnified party's notice is given, give notice to the indemnified party of its
election to assume the defense thereof, the indemnifying party shall be bound by
any determination made in such action or any compromise or settlement thereof
effected by the indemnified party. Notwithstanding the foregoing, if an
indemnified party determined in good faith that there is a reasonable
probability that an action may materially and adversely affect it or its
affiliated other than as a result of monetary damages, such indemnified party
may, by notice to the indemnifying party, assume the exclusive right to defend,
compromise or settle such action, but the indemnifying party shall not be bound
by any
16
determination of an action so defended or any compromise or settlement
thereof effected without its consent (which shall not be unreasonably withheld).
ARTICLE 10
MISCELLANEOUS
Section 10.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing and either delivered personally, telecopied
or sent by certified or registered mail, postage prepaid,
If to the Seller: Per-Anders Johansson
Infinicom AB
Box 237
Karishmn SE 374 24
Sweden
With a copy to: Steven W. Schuster, Esq.
McLaughlin & Stern LLP
260 Madison Ave., 18th Floor
New York, NY 10016
Facsimile: (212) 448-0066
If to Purchasers: R&R Biotech Partners, LLC
c/o Rodman & Renshaw Holding, LLC
330 Madison Ave., 27th Floor
New York, New York 10017
Attention: Tom Pinou, CFO
Facsimile: (212) 356-0536
and
Moyo Partners, LLC
c/o Arnold P. Kling, Esq.
444 E. 86th St. Suite PHF
New York, New York 10028
Attention: Arnold P. Kling, Managing Member
Facsimile: (212) 744-0767
With a copy to: Morse Zelnick Rose & Lander, LLP
405 Park Avenue - Suite 1401
New York, New York 10022
Attention: Kenneth Rose, Esq.
Facsimile: (212) 838-9190
17
If to the Company: 24Holdings, Inc.
Cyberia House
Church Street
Basingstoke, Hampshire RG21 7QN
United Kingdom
With a copy to: Daniel Peters, Esq.
White & Case LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071-2007
Fax: (213) 402-2470
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other Parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally
or by overnight delivery service or telecopied or, if mailed, five (5) business
days after the date of mailing if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
Section 10.2 Amendments; No Waivers.
(a) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by the Seller
and Purchasers; or in the case of a waiver, by the party against whom the waiver
is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 10.3 Fees and Expenses. Whether or not the Closing is consummated,
each of the Parties will pay all of its own legal and accounting fees and other
expenses incurred in the preparation and negotiation of this Agreement and the
performance of the terms and provisions of this Agreement.
Section 10.4 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns; provided that Purchasers shall have the right
to assign this Agreement to an affiliate of such Purchasers and no other party
hereto may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other party hereto,
but any such transfer or assignment will not relieve the appropriate party of
its obligations hereunder.
18
Section 10.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 10.6 Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the City of New York, Borough of
Manhattan, and each of the parties hereto consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 10.1 shall be deemed
effective service of process on such party. Each party hereto (including its
affiliates, agents, officers, directors and employees) irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 10.7 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto has received
counterparts hereof signed by all of the other parties. No provision of this
Agreement is intended to confer upon any Person other than the parties hereto
any rights or remedies under this Agreement.
Section 10.8 Entire Agreement. This Agreement and the attached Exhibits and
Schedules constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement.
Section 10.9 Captions. The captions are included for convenience of
reference only and shall be ignored in the construction or interpretation of
this Agreement.
Section 10.10 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any parties. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the fullest extent
possible.
19
Section 10.11 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the its terms and that the parties shall be
entitled to specific performance of the terms of this Agreement in addition to
any other remedy to which they are entitled at law or in equity.
Section 10.12 Definition and Usage.
"Indebtedness" shall mean (a) any liabilities for borrowed money or
amounts owed, (b) all guaranties, endorsements and other contingent obligations,
whether or not the same are or should be reflected in the Company's balance
sheet or the notes thereto, except guaranties by endorsement of negotiable
instruments for deposit or collection in the ordinary course of business, and
(c) the present value of any lease payments under leases required to be
capitalized in accordance with GAAP.
"Material Adverse Effect" means any effect or change that is or would
be materially adverse to the business, operations, assets, prospects, condition
(financial or otherwise) or results of operations of the Company and any of its
subsidiaries, taken as a whole.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality of the
foregoing.
"Taxes" means any and all federal, state, local, foreign or other
taxes of any kind (together with any and all interest, penalties, additions to
tax and additional amounts imposed with respect thereto) imposed by any taxing
authority, including, without limitation, taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts, sales,
use, capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth, and taxes or other charges in the
nature of excise, withholding, ad valorem or value added.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, each of the following individuals has caused this
Agreement to be signed, and each party that is not an individual has caused this
Agreement to be duly executed under seal by its respective authorized officers,
all as of the day and year first above written.
SELLER:
INFINICOM AB
By: /s/ Per-Anders Johansson /s/ Bjorn Littorin
--------------------------------
Name: Per-Anders Johansson Bjorn Littorin
Title: Chairman CEO
THE COMPANY:
24Holdings, Inc.
By: /s/ Roger Woodward
--------------------------------
Name: Roger Woodward
Title: Chief Financial Officer
PURCHASERS:
R&R BIOTECH PARTNERS LLC PORTION OF PUCHASE PRICE
AND SHARES PURCHASED
--------------------
By: /s/ Thomas G. Pinou
----------------------------------------
Name: Thomas G. Pinou 80%
----------------------------------------
Title: Chief Financial Officer
----------------------------------------
MOYO PARTNERS, LLC
By: /s/ Arnold P. Kling
----------------------------------------
Name: Arnold P. Kling 20%
----------------------------------------
Title: Manager
----------------------------------------
21